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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
SCs & STs (POA) Act cum –IV ADDL. DISTRICT JUDGE, SRIKAKULAM
Present: Sri S.M. Phani Kumar
Special Judge for trial of cases under SCs & STs (POA) Act
-Cum-IV Addl. District Judge, Srikakulam
Monday, the 10th day of July, 2023
APPEAL SUIT NO. 19/2018
Between:
Challa Simhachalam, s/o late Suryanarayana, Hindu, aged 58 years, business, r/o Jettivari Veedhi, Palakonda Town, PO & Mandal, Srikakulam Dist. … Appellant / Petitioner/ 3rd party objector/ claimant And:
1. Battula Padmavathi, wife of Nagabhushanarao, aged 59 years, Hindu, House hold duties, residing at door no. 39-4-12/2, Sector IV, Murali nagar, Visakhapatnam … Respondent/ petitioner/ D.Hr
2. Ravuru Jagannadha Rao (Since died)
3. Ravuru Srinivasarao, son of Jagannadharrao, aged about 46 years, Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
4. Ravuru Lakshmanarao, son of Jagannadharao, aged about 43 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
5. Ravuru Kamalamma, wife of Jagannadharao, aged about 64 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
6. Vemakoti Venkatarao Pantulu (died)
7. Turella China Latchmu, son of late Gangayya, aged about 50 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
8. Pappala Satyamseti, son of Suri Setty, aged about 55 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
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9. Dummoda Narayanamma, wife of late Suryanarayana, aged about 50 years. Hindu, House hold duties, resident of Attali village of Palakonda mandal in Srikakulam district.
10. Girizala Babji, son of Appalaswamy, aged about 50 years, Hindu, cultivation, resident of Palakonda nagar panchayat in Srikakulam district.
11. Rayapureddi Rama Ratna, wife of Mohanarao, aged about 53 years, Hindu, House hold duties, Sankili village of Regidiamdalavalasa mandal.
12. Karasodi Lakshmikantam, wife of Venkataramarao, aged about 45, Hindu, residing at door no. 137/B of Railway quarters, Dondaparthi village of Visakhapatnam district.
13. Battula Savitri, wife of Ramakrishnarao, aged about 42 years, Hindu, residing at door no. B2/5 of LIC quarters in Peddawaltair, Visakhapatnam,
14. Pragada Rangamani, wife of late Venkatarao, aged about 40 years, Hind residing at door no. 37/B of Traffic colony at Kurda road, Puri district Odisha.
15. Vemakoti Viswanadham, son of late Venkatarao Pantulu @ Kondaya pantulu, aged about 35 years, Hindu, resident of Palakonda mandal in Srikakulam district.
16. Vemakoti Ramanamurty, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 30 years. Hindu, resident of Palakonda mandal in Srikakulam district.
17. Vemakoti Satynarayana, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 25 years, Hindu, resident of Palakonda mandal in Srikakulam district.
18. Akkireddi Laxmi sri, wife of Vivekananda Swamy, Hindu, aged about 50 years, residing at Ippili street of S.P.Rural office, Pedda waltair. Visakhapatnam.
19. Nalla Sujata, wife of Rama Prasad, Hindu, aged about 50 years, employee, Andhra Bank, Amadalavalasa, Srikakulam district.
20. Balireddi Geethanjali, wife of Venkatarao, aged about 52 years, Hindu, Near Andhra Bhoomi Office, Visakhapatnam.
…Respondents/ Respondents/ Defendants
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ON APPEAL FROM THE ORDER AND DECRETAL ORDER DATED 18-1- 2018 ON THE FILE OF SENIOR CIVIL JUDGE, RAJAM MADE IN E.A.No.39/2011 in E.P.17/2011 IN O.S.32/1984
Between: Challa Simhachalam, s/o late Suryanarayana, Hindu, aged 58 years, business, r/o Jettivari Veedhi, Palakonda Town, PO & Mandal, Srikakulam Dist. … Petitioner And:
1. Battula Padmavathi, wife of Nagabhushanarao, aged 59 years, Hindu, House hold duties, residing at door no. 39-4-12/2, Sector IV, Murali nagar, Visakhapatnam
2. Ravuru Jagannadha Rao (Since died)
3. Ravuru Srinivasarao, son of Jagannadharrao, aged about 46 years, Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
4. Ravuru Lakshmanarao, son of Jagannadharao, aged about 43 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
5. Ravuru Kamalamma, wife of Jagannadharao, aged about 64 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
6. Vemakoti Venkatarao Pantulu (died)
7. Turella China Latchmu, son of late Gangayya, aged about 50 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
8. Pappala Satyamseti, son of Suri Setty, aged about 55 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
9. Dummoda Narayanamma, wife of late Suryanarayana, aged about 50 years. Hindu, House hold duties, resident of Attali village of Palakonda mandal in Srikakulam district.
10. Girizala Babji, son of Appalaswamy, aged about 50 years, Hindu, cultivation, resident of Palakonda nagar panchayat in Srikakulam district.
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11. Rayapureddi Rama Ratna, wife of Mohanarao, aged about 53 years, Hindu, House hold duties, Sankili village of Regidiamdalavalasa mandal.
12. Karasodi Lakshmikantam, wife of Venkataramarao, aged about 45, Hindu, residing at door no. 137/B of Railway quarters, Dondaparthi village of Visakhapatnam district.
13. Battula Savitri, wife of Ramakrishnarao, aged about 42 years, Hindu, residing at door no. B2/5 of LIC quarters in Peddawaltair, Visakhapatnam,
14. Pragada Rangamani, wife of late Venkatarao, aged about 40 years, Hind residing at door no. 37/B of Traffic colony at Kurda road, Puri district Odisha.
15. Vemakoti Viswanadham, son of late Venkatarao Pantulu @ Kondaya pantulu, aged about 35 years, Hindu, resident of Palakonda mandal in Srikakulam district.
16. Vemakoti Ramanamurty, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 30 years. Hindu, resident of Palakonda mandal in Srikakulam district.
17. Vemakoti Satynarayana, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 25 years, Hindu, resident of Palakonda mandal in Srikakulam district.
18. Akkireddi Laxmi sri, wife of Vivekananda Swamy, Hindu, aged about 50 years, residing at Ippili street of S.P.Rural office, Pedda waltair. Visakhapatnam.
19. Nalla Sujata, wife of Rama Prasad, Hindu, aged about 50 years, employee, Andhra Bank, Amadalavalasa, Srikakulam district.
20. Balireddi Geethanjali, wife of Venkatarao, aged about 52 years, Hindu, Near Andhra Bhoomi Office, Visakhapatnam.
… Respondents
This appeal came on 28-6-2023 for final hearing before me in the presence of C. Narasimhamurty, Advocate for the appellant and of Sri P. Ramanjaneyulu, Sri Y.Satyasrinivas, Sri Y. Ramesh, Advocates
for the respondent-1; Sri K. Ravi, Advocate for R3 and R5 and upon
hearing their arguments and matter having stood over for consideration till this day, this Court delivered the following:
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JUDGMENT
1.This is an appeal filed by the appellant/ claim petitioner/3rd party praying the court to set aside the decree and order of learned
Senior Civil Judge, Rajam passed in E.A.No.39/2011 in E.P.17/2011 IN
O.S.32/1984 dt.18-1-2018 and to allow the claim petition which was
dismissed by allowing this appeal with costs.
2.The grounds of appeal are as follows:
a. The decree and order passed by the executing court is contrary to law, weight of evidence and probabilities of the case. The executing court erred in appreciating the oral evidence of PW1 to 5 coupled with Ex.P1 to P7 in a right perspective. The executing court also failed to appreciate the evidence independent witnesses who gave evidence as Pws 4 and 5. The executing court also failed to observe that the documents produced by the appellant clearly establish the dual relationship of landlord and tenant, but the same was not appreciated by the executing court properly. The executing court also failed to appreciate the fact that the petitioner pleaded and adduced evidence that he used to pay rents to the second respondent and subsequent to his demise to his son i.e., 3rd respondent, but no receipts were issued, but the said fact was not properly appreciated by the executing court and held that no receipts were filed as proof of payment of rents.
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b. the executing court also wrongly held that petition under
Order 21 Rule 97 CPC is not maintainable by a third party and it is available only to the D.Hr which is contrary to the law.
c. the appellant by adducing cogent evidence is able to establish that he is the tenant holding over in respect of the claim schedule property, but the executing court instead of passing a decree wrongly dismissed the claim petition.
d. the executing court also did not appreciate the report of the
Advocate Commissioner who was appointed to determine the mesne profits in the final decree petition and the report of the Advocte
Commissioner clearly establish that the appellant is the tenant in the schedule property.
3.Therefore requested the court to consider the appeal grounds and to allow this appeal by setting aside the decree and order passed by the executing court dismissing the claim petition, by allowing this appeal.
4.Though several respondents were shown in the appeal, as per the orders passed in the final decree in I.A.120/1988 in O.S.32/1984, notices were issued only against R1 and R3, R5. Therefore in the present appeal also notices were issued only against R1 and R3, R5.
5.After receiving notice in the appeal the respondents 1 and 3, 5 made appearance and contested the appeal. The 1st respondent is
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the D.Hr and 3rd , 5th respondents are the J.Drs before the executing court in E.A.39/2011 IN E.P.17/2011.
6.Heard the arguments of the ld. Counsel for the appellant/ claim petitioner/ 3rd party and also the arguments of the ld. Counsel for the respondents 1 and 3, 5/ respondents. The counsel for respondent no.1 / D.Hr filed written arguments.
7. Perused the entire record. For easy understanding and convenience the parties will be referred hereafter as they are arrayed in the claim petition.
8.The case of the appellant/ claim petitioner/ 3rd party before the executing court is as follows:
The claim petitioner/ 3rd party contended that he is the tenant in respect of the claim petition schedule shop room. The said shop was taken on lease by his father about 8 decades back from Sri
Ravuru Apparao who is the father of 2nd respondent. His father used to carry soda business in the claim petition schedule and used to pay rents regularly to the said Ravuru Apparao. After the death of Ravuru
Apparao the father of the claim petitioner/ 3rd party by name
Suryanarayana used to pay rents to the 2nd respondent by name
Ravuru Jagannadharao. Subsequent to the death of the father of the claim petitioner, he used to pay rents regularly to Ravuru
Jagananadharao 2nd respondent. Subsequent to the death of 2nd respondent, the claim petitioner used to pay rents to his son i.e., 3rd
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respondent i.e., Ravuru Srinivasarao. Therefore the claim petitioner at present and his father previously were in continuous possession of claim schedule property without any default in payment of rents.
9.The claim petitioner by the time of filing the claim petition was paying the rents of Rs.4,00/- per month by running soda business.
The father of the claim petitioner also obtained electricity service connection bearing no.381 and also obtained license from the labour officer and also from the shops and establishment for running the business. The claim petitioner also obtained water tap connection to his shop in the name of his son for doing business. The said soda business is the only source of income for the family of the claim petitioner. In the month of July, 2011 one person came to the schedule property and informed that the claim schedule property is going to be delivered as per the orders of the court, therefore the claim petitioner caused enquiries and came to know that the 1st respondent/ D.Hr filed EP.17/2011 for delivery of the claim schedule property by obtaining preliminary and final decrees in a partition suit in O.S.32/1984 against the remaining respondents. The remaining respondents are well aware of the fact that the claim petitioner is a tenant in respect of the schedule property but they did not bring the said fact to the knowledge of the court and consequently the claim petitioner had to file the claim petition under Order-21 Rule 97 CPC to declare that he is a tenant in respect of the claim schedule property and he got right to continue as a tenant and also to restrain
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the 1st respondent/ D.Hr from forcibly evicting the claim petitioner from the schedule property.
10.The case of the 1st respondent/ D.Hr before the executing court is as follows:
The 1st respondent denied all the material averments made by the claim petitioner. It was further contended that neither the respondents nor their father never inducted the father of the claim petitioner as a tenant in the schedule property and the same is invented only to prevent the delivery of the schedule property to the 1st respondent/ D.Hr. In fact the 1st respondent filed a suit for partition in O.S.32/1984 in respect of plaint A to G schedule properties against the remaining respondents. The 2nd respondent contested the partition suit but never pleaded about the tenancy in favour of the claim petitioner in the partition suit. Subsequently the suit was disposed on merits by passing a preliminary decree in favour of the 1st respondent/ D.Hr. Aggrieved by the decree and judgment passed in O.S.32/1984 the respondents also preferred an appeal in A.S.684/1989 and subsequently the said appeal was dismissed by confirming the decree and judgment of the trial court.
Subsequently the 1st respondent/ D.Hr also filed a final decree petition in I.A.120/1988. In the said final decree petition an Advocate
Commissioner was appointed for division of properties and also to determine the mesne profits and subsequently a report has been filed. Thereafter a final decree has been passed allotting item nos.1
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and 2 in F -schedule property in the final decree schedule in favour of the 1st respondent/ D.Hr. The claim schedule property is item no.1 of F-schedule in the final decree. Therefore the 1st respondent/ D.Hr filed EP.17/2011 seeking delivery of the properties allotted in her favour in the final decree. The claim petitioner and his father were never in possession and enjoyment of the schedule property at any point of time and the same is invented as an after-thought to avoid delivery of property to the 1st respondent/ D.Hr.
11.The 3rd respondent/ J.Dr also filed separate counter denying the allegations made in the claim petition. However the 3rd respondent admitted that the claim petitioner is the tenant in respect of the claim schedule shop which was allotted to the 1st respondent/ D.Hr in the final decree. It was further contended that the claim petitioner being tenant he must seek permission or attornment of tenancy under sec.109 of Transfer of property Act , but cannot file a petition for declaration of his tenancy and also to prevent the 1st respondent/
D.Hr from obtaining the possession of the schedule property and requested to dismiss the claim petition.
12.Basing on the pleadings of both parties, the executing court has framed the following points for determination.
1. Whether there existed any dual relationship between petitioner and 2nd respondent as a landlord and tenant?
2. Whether petitioner entitled for declaration that his possession has to be perfected as a tenant of 2nd respondent?
3. Whether petitioner can resist the execution proceedings?
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4. To what relief?
13.To establish the claim, the claim petitioner got examined himself as PW1 and got marked Ex.P1 to P7. The claim petitioner also examined his two sons namely Challa Jayaram and Challa
Nagaraju as Pws 2 and 3 respectively. The claim petitioner also examined two independent witnesses as Pws 4 and 5. On the other hand, the 1st respondent/ D.Hr got examined herself as RW1 and got marked Ex.R1 to R5. The 3rd respondent/ J.Dr got examined himself as Rw2.
14.After hearing the arguments of both counsels and after evaluating the oral and documentary evidence placed on record, the executing court has come to conclusion that the claim petitioner has failed to establish his claim in the petition and did not believe the evidence placed on record by the claim petitioner and proceeded to dismiss the claim petition by its decree and order dated 18-1-2018.
15.Aggrieved by the said decree and order passed by the ld.
Senior Civil Judge Court, Rajam dt.18-1-2018, the appellant/ claim
petitioner/ 3rd party preferred the present appeal.
16.Now the points for consideration are:
1) Whether the decree and order passed by the ld. Senior civil
Judge, Rajam in E.A. 39/2011 In E.P.17/2011 IN O.S.32/1984
DATED 18-1-2018 is proper and in accordance with law, if not
whether it requires any interference by this court?
2) To what relief?
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POINT NO.1
17. The admitted facts in this case are as follows:-
The 1st respondent/ D.Hr filed a suit in O.S.32/1984 for partition of joint family properties against the remaining respondents/ J.Drs.
The said partition suit was decided on merits by the Senior Civil
Judge, Rajam and a preliminary decree was passed in favour of the
1st respondent/ D.Hr. Aggrieved by the said decree and judgment passed by the trial court the respondents 1 to 4 / J.Drs preferred appeal before the Hon’ble High court and the same was dismissed on merits by confirming the decree and judgment of the trial court.
Later the 1st respondent/ D.Hr filed I.A.126/1988 for final decree. In the said final decree petition an Advocate Commissioner was appointed for division of properties and for determination of mesne profits and thereafter final decree was passed allotting items no.1 and 2 of F– Schedule in the final decree in favour of the 1st respondent/ D.Hr. Thereafter the 1strespondent/ D.Hr filed
EP.17/2011 for delivery of the schedule properties allotted to her in
the final decree. When the field assistant of the court went to the schedule property for execution of delivery warrant, the claim petitioner / 3rd party had approached the executing court and filed claim petition in E.A. no.39/2011 contending that he is a tenant in respect of the schedule property which was ordered to be delivered to the 1st respondent/ D.Hr and he cannot be forcibly evicted and to
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declare his right to continue as a tenant in the schedule property. All the above said facts were admitted by the parties on record.
18.So far as the 1st respondent / D.Hr is concerned, she got a preliminary and final decrees in her favour which establish her right over the schedule property and also she is entitled to obtain delivery of property through process of law. In this regard, the 1st respondent/
D.Hr got examined herself as RW1 and got marked Ex.R1 to R5.
Ex.R1 is certified copy of legal notice dated 7-7-1981 issued by 1st respondent to his brother i.e., deceased 2nd respondent by name
Ravuru Jagannadharao. Ex.R2 is the certified copy of reply notice
dated 19-9-1981 issued by the 2nd respondent. Ex.R3 is the certified
copy of preliminary decree dated 29-10-1987 passed in O.S.32/1984 on the file of Senior Civil Judge Court, Rajam. Ex.R4 is the certified copy of order in final decree petition in I.A.126/1988 passed in
O.S.32/84 on the file of Sr. Civil Judge court, Rajam. Ex.R5 is the
certified copy of decree dated 25-11-2008 in .A.S684/1989 on the file of Hon’ble High Court of A.P., Hyderabad.
19.The claim petitioner/ 3rd party is contending that he is the tenant in respect of the claim schedule property and therefore he cannot be dispossessed from the claim schedule property. Therefore the burden lies on the claim petitioner to prove his tenancy on one hand and on the other hand he is legally entitled to remain in possession of claim schedule property. Coming to the legal aspect,
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the claim petitioner filed this petition under order-21 rule 97 CPC which reads as follows:
ORDER-21 RULE 97 CPC:
97. Resistance or obstruction to possession of immovable property:- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
20.A plain reading of Order 21 Rule 97 CPC clearly show that it is only the D.Hr who can file application under this provision. In this regard, the counsel for the first respondent/ D.Hr also relied on a decision held in between T. Srinivasarao and another vs.
E.Ravinder and another reported in 2012 (5) ALD 785 Division
Bench at para no.28 it was held as follows:
“A plain reading of the above provision shows that it is a remedy available to the decree-holder if he is resisted or obstructed by any person in obtaining possession of the property. Whenever such an application is made by the decree- holder under Rule 97 of CPC complaining to the Court resistance or obstruction by any person, all questions arising between the decree-holder and any such person shall be adjudicated by the executing Court itself under Order Rule 101 CPC. May be that, such an application filed by the decree- holder can be opposed by any person in possession by seeking adjudication of his objections, however such person himself cannot maintain an application under Order 21 Rule-97 CPC.”
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21.Therefore, as per the provision and also considering the above referred judgment, it is clear that it is only the D.Hr who can invoke the provision when any resistance or obstruction caused by any person for delivery of property. In the present case it is the 3rd party who has invoked the provision to file this petition and on this ground itself the present petition is not maintainable.
22.However, the Hon’ble High Court further held in the above judgment that when any objection is raised in the execution proceedings with regard to title or interest over the property. Such claims shall be decided by the executing court under order-21 Rule 101 CPC but not by way of a separate suit.
23.Even if the above principle is considered, the 3rd party /claim petitioner has to discharge his burden of proving the tenancy and his entitlement to continue in possession of the property. At this juncture, it is relevant to discuss that the civil court has passed a preliminary decree as well as a final decree in favour of the 1st respondent /D.Hr allotting the claim schedule property. Therefore, the J.Drs in the execution petition shall vacate the property and hand over the possession to the 1st respondent/ D.Hr. The 3rd party is claiming to be a tenant under the J.Drs 2 to 5. Therefore, the 3rd party claiming as a tenant cannot claim a better right or interest over the property than original owner. In the present case the J.Drs who alleged to have inducted the 3rd party as tenant seized to be the owners and they are supposed to handover the possession to the 1st
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respondent/ D.Hr. Therefore the 3rd party claiming tenancy cannot exercise any right which is not available to the original owner. In this regard, the counsel for the 1st respondent/ D.Hr relied on a decision 2012 (5) ALD 357 held in between Sha Sulthana (Died) per LRs and Ors. Vs. Anil Agarwal and another. In the judgment at para no.21 the Hon’ble Apex court held as follows:- “While this dichotomy exists between the judgment-debtor, on the one hand, and a stranger, or third party to a decree, on the other hand, an altogether different class also exists, namely, persons not parties to the decree, but claiming through the judgment-debtors. Though a person claiming through the judgment-debtor may not be a party to the proceedings and thereby can be treated as a third party in the common parlance, he cannot be extended the same benefit or conceded the same rights as can be done to a person, who has no relation, whatever, either with the decree-holder or judgment- debtor. A person claiming rights through a judgment-debtor cannot be conferred with the right to oppose the decree by raising separate grounds nor can he insist on independent trial in the execution proceeding. The reason is that he must stand or fall with the judgment-debtor, and his rights and interests, if any, are deemed to have been taken care of by the judgment- debtor, if he has any independent right in him, vis-a-vis the judgment-debtor, he has to work out the same separately, but cannot resist the execution of a decree obtained by the decree- holder”.
24.On the other hand, the counsel for the claim petitioner/ 3rd party relied on a decision reported in AIR 1996 SC 2102 held in between Samir Soban Sanyal vs. Tracks Trade Private Ltd. and
Others. In the judgment it was held that- “when a tenant is in peaceful possession and enjoyment of the schedule property, he cannot be evicted from the property without following due process of law, even in execution proceedings.”
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25.In the above referred judgment the parties have admitted the possession of the tenant. Though the parties have knowledge about the tenancy they did not choose to implead the tenant as a party to proceedings. Considering the fact that the tenancy was admitted by the parties, the above decision was rendered. Moreover, the tenant has filed the petition before the court under Order-21 R-98 and 99 seeking for protection of his possession on par with the J.Dr. The above decision cannot be applied to the present case on two basic points. Firstly the tenant has filed the petition under order 21 Rule 98 and 99 CPC in the referred decision which is maintainable. But in the present case the tenant has filed petition under Order 21 R-97 CPC which he cannot maintain as discussed above. Secondly, the tenancy was admitted by both parties in the above referred decision, but in the present case tenancy was denied. Therefore considering the present set of facts the decision relied upon by the counsel for the claim petitioner/ 3rd party cannot be taken into consideration.
26.The judgment cited by the counsel for the 1st respondent/ D.Hr are squarely applicable to the present set of facts and as such the principle laid down in the decisions can be applied in this case.
Therefore considering the observations and discussion made above, the legal aspects are against the claim petitioner/ 3rd party.
27.Coming to the factual aspects, the petitioner/ claimant got examined himself as PW1 and examined his two sons as Pws 2 and 3 and got marked Ex.P1 to P7. As per the version of PW1, his father by
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name Suryanarayana was inducted into possession of the claim schedule property about 8 decades back by the father of the 2nd J.Dr by name Apparao. Since then his father enjoyed the property by running soda business in the schedule shop. After the demise of the said Apparao, his father used to pay rents to the 2nd J.Dr. Later after demise of the father of the claim petitioner, he continued the same business and used to pay rents to the 2nd J.Dr. Thereafter the 2nd J.Dr also died and as such he is paying rents to the 3rd and 5th respondents who are the wife and son of the 2nd respondent. In this regard except the oral contention of the claim petitioner there is no evidence to show the lease and also receipts for payment of rents.
PW1 also did not state as to on which date his father was inducted as tenant and what was the rent agreed and the tenure of the lease.
In the absence of any such material particulars the oral contention of the claim petitioner setting up tenancy cannot sustain. If really the tenancy was for a period of 8 decades certainly there will be receipts available for payment of rents. PW1 categorically stated during cross examination that he obtained rent payment receipts issued by R3, but no such receipts were filed into court. Moreover, the 3rd respondent who gave evidence as RW1 categorically stated that he never received any rents from the claim petitioner after passing of the final decree and he has not issued any receipts to the claim petitioner. Therefore, the version of PW1 appears to be doubtful. .
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28.In this context, it is also pertinent to discuss that the respondents who contested the partition suit and also the final decree petition never stated either in the pleadings or in evidence about the existence of tenancy in favour of the claim petitioner/ 3rd party. This fact also categorically lending support to the version of the 1st respondent/ D.Hr that the tenancy has been invented only to deny delivery of schedule property to the D.Hr. The 3rd respondent who gave evidence as Rw2 admitted that the claim petitioner is a tenant in respect of the schedule property. In this regard, the counsel for the D.Hr also relied on a decision held in between Pothuri
Thulasidas vs. Potru Nageswararao reported in 2004(6) ALT 525. In the judgment at para no.13 it was held that – “Once the decree has become final, it is not open to him to plead new facts. Even if it is true that the ground pleaded by him in the E.A. constitutes a formidable defence, it is not open to him to plead in the Execution proceedings. If for any reason, the application under Order XXI is to be treated as independent proceedings, the plea is barred by constructive res-judicata. It is settled principle of law that the executing Court cannot go beyond the scope of the decree. Further, the respondent does not propose to plead a fact, which has surfaced or taken place after the decree became final. The incident pleaded by him relates to a time when the suit was pending. Not a whisper was made in his written statement nor was it canvassed in the Appeal, Second Appeal or S.L.P. He cannot be permitted to open a fresh round of litigation. The executing Court had taken the correct view that it is impermissible for the judgment debtor to plead any fact contrary to the decree.”
29.After considering the above decision, it is evident that the respondents who are the J.Drs in the partition suit did not speak about the tenancy in favour of the claim petitioner, but they are speaking the said fact for the first time before the executing court
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and as such it will operate as constructive res-judicata and therefore, the evidence of RW2 (3rd respondent) is not credible and trustworthy and no weightage can be given.
30.Coming to the documents exhibited by the PW1, he got marked
Ex.P1 to P7. Ex.P1 is the license fee paid by the claim petitioner to the grama panchayat Palakonda for doing soda business for the years 2008-2009, but Ex.P1 does not show that the said business was being done from the schedule shop. Ex.P2 is the receipt issued by the grama panchayat Palakonda for doing business which stands in the name of PW1, but does not show that the said business was being run in the suit schedule shop. Ex.P3 is the Form-C certificate under Shops and Establishment Act which also does not contain that the said establishment was existing in the suit schedule shop. Ex.P4 are 20 electricity consumption bills for service connection no.381 of
Palakonda stands in the name of the father of the claim petitioner (PW1). Ex.P4 is also not specific that the said service connection is relating to the claim schedule shop. Ex.P5 and P6 are the water tax receipts which stands in the name of the son of the claim petitioner which also does not show that the tap connection is relating to the claim schedule shop. Moreover, when the alleged business belongs to the claim petitioner/ PW1, why the water tap connection was obtained in the name of his son was not explained. Ex.P7 is the commissioner report relating to mesne profits in which the claim petitioner also gave evidence as a witness. Ex.P1 to P7 marked by
AS.No.19/2018 Date of disposal: 10-07-2023
the petitioner does not establish that the claim petitioner is a tenant in respect of the claim schedule property. Moreover, Ex.P1 to P6 does not establish that the said documents are relating to the claim schedule property. Therefore the documents filed by the claim petitioner are no way useful to prove the alleged tenancy. As already discussed above, there is no lease agreement or rent receipts to prove the alleged tenancy and Ex.P1 to P7 are also not establishing the alleged tenancy in respect of the claim schedule shop.
31.The claim petitioner examined his sons as PWs2 and 3. Pws 2 and 3 also categorically stated in their evidence that they does not know as to when the lease was obtained by his father and whether there was any lease deed in favour of his father and whether any rent receipts were obtained . Therefore the evidence clearly show that they have no knowledge about the facts of the case, but they were examined to support the case of the claim petitioner and as such their evidence is not credible and trustworthy. The evidence of
Pws 4 and 5 who are the independent witnesses stated differently at different times and their evidence is inconsistent and therefore not credible. PW4 deposed that he is having shop near to the schedule shop and stated that he purchased his shop about 6 or 7 years back.
Surprisingly PW4 could not say the name of his vendor and since how long he is doing business in shop. Moreover, PW4 at one point of time stated that his shop was situated near the schedule shop and subsequently stated that his shop was situated at a distance of 2
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kms from the schedule shop and this fact clearly establishes that he is a planted witness and therefore his evidence is not credible and trustworthy.
32.Therefore the oral evidence of PWS 1 to 5 coupled with Ex.P1 to
P7 does not establish the tenancy of the claim petitioner in respect of the claim schedule property. From the above discussions and observations made by this court, it is evident that the tenancy has been set up at the stage of delivery of property to avoid the delivery of the property to the D.Hr. If really the tenancy is true certainly that fact would have been pleaded by the respondents/ J.Drs in the partition suit itself or at least there will be rent receipts or documents as proof. The absence of all these material particulars clearly show that the tenancy set up by the claim petitioner is false.
Therefore the claim petitioner is not entitled to seek for declaration of his tenancy rights and also to continue in possession of the claim schedule property.
33.Considering the entire material on record, this appellate court is of the considered view that the executing court has decided the claim petition and rightly answered the points both on factual and legal aspects. Considering the observations and the findings given by this court, this court is of the considered view that the executing court has rightly passed a decree and order in E.A.39/2011 IN
E.P.17/2011 IN O.S.32/1984 dated 18-1-2018 by dismissing the claim
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petition and there are no sufficient and tenable grounds to interfere with the said decree and order. Accordingly point -1 is answered.
POINT NO.2
34.In view of the findings given by this court on point no.1, this court holds that the present appeal is devoid of merits and therefore liable to be dismissed.
35.In the result the appeal is dismissed without costs by confirming the decree and order passed by the ld. Senior Civil Judge,
Rajam in E.A.39/2011 IN E.P.17/2011 IN O.S.32/1984 dated 18-1- 2018.
Typed to my dictation, corrected and pronounced by me in the open Court, this the 10th day of July, 2023.
IV Additional District Judge, Srikakulam.
Appendix of Evidence
Witnesses examined & documents marked -NIL-
IV Additional District Judge, Srikakulam.
Copy to the Senior Civil Judge, Rajam along with lower court record.
AS.No.19/2018 Date of disposal: 10-07-2023
IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
SCs & STs (POA) Act cum –IV ADDL. DISTRICT JUDGE, SRIKAKULAM
Present: Sri S.M. Phani Kumar
Special Judge for trial of cases under SCs & STs (POA) Act
-Cum-IV Addl. District Judge, Srikakulam
Monday, the 10th day of July, 2023
APPEAL SUIT NO. 19/2018
Between:
Challa Simhachalam, s/o late Suryanarayana, Hindu, aged 58 years, business, r/o Jettivari Veedhi, Palakonda Town, PO & Mandal, Srikakulam Dist. … Appellant / Petitioner/ 3rd party objector/ claimant And:
1. Battula Padmavathi, wife of Nagabhushanarao, aged 59 years, Hindu, House hold duties, residing at door no. 39-4-12/2, Sector IV, Murali nagar, Visakhapatnam … Respondent/ petitioner/ D.Hr
2. Ravuru Jagannadha Rao (Since died)
3. Ravuru Srinivasarao, son of Jagannadharrao, aged about 46 years, Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
4. Ravuru Lakshmanarao, son of Jagannadharao, aged about 43 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
5. Ravuru Kamalamma, wife of Jagannadharao, aged about 64 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
6. Vemakoti Venkatarao Pantulu (died)
7. Turella China Latchmu, son of late Gangayya, aged about 50 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
8. Pappala Satyamseti, son of Suri Setty, aged about 55 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
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9. Dummoda Narayanamma, wife of late Suryanarayana, aged about 50 years. Hindu, House hold duties, resident of Attali village of Palakonda mandal in Srikakulam district.
10. Girizala Babji, son of Appalaswamy, aged about 50 years, Hindu, cultivation, resident of Palakonda nagar panchayat in Srikakulam district.
11. Rayapureddi Rama Ratna, wife of Mohanarao, aged about 53 years, Hindu, House hold duties, Sankili village of Regidiamdalavalasa mandal.
12. Karasodi Lakshmikantam, wife of Venkataramarao, aged about 45, Hindu, residing at door no. 137/B of Railway quarters, Dondaparthi village of Visakhapatnam district.
13. Battula Savitri, wife of Ramakrishnarao, aged about 42 years, Hindu, residing at door no. B2/5 of LIC quarters in Peddawaltair, Visakhapatnam,
14. Pragada Rangamani, wife of late Venkatarao, aged about 40 years, Hind residing at door no. 37/B of Traffic colony at Kurda road, Puri district Odisha.
15. Vemakoti Viswanadham, son of late Venkatarao Pantulu @ Kondaya pantulu, aged about 35 years, Hindu, resident of Palakonda mandal in Srikakulam district.
16. Vemakoti Ramanamurty, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 30 years. Hindu, resident of Palakonda mandal in Srikakulam district.
17. Vemakoti Satynarayana, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 25 years, Hindu, resident of Palakonda mandal in Srikakulam district.
18. Akkireddi Laxmi sri, wife of Vivekananda Swamy, Hindu, aged about 50 years, residing at Ippili street of S.P.Rural office, Pedda waltair. Visakhapatnam.
19. Nalla Sujata, wife of Rama Prasad, Hindu, aged about 50 years, employee, Andhra Bank, Amadalavalasa, Srikakulam district.
20. Balireddi Geethanjali, wife of Venkatarao, aged about 52 years, Hindu, Near Andhra Bhoomi Office, Visakhapatnam.
…Respondents/ Respondents/ Defendants
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ON APPEAL FROM THE ORDER AND DECRETAL ORDER DATED 18-1- 2018 ON THE FILE OF SENIOR CIVIL JUDGE, RAJAM MADE IN E.A.No.39/2011 in E.P.17/2011 IN O.S.32/1984
Between: Challa Simhachalam, s/o late Suryanarayana, Hindu, aged 58 years, business, r/o Jettivari Veedhi, Palakonda Town, PO & Mandal, Srikakulam Dist. … Petitioner And:
1. Battula Padmavathi, wife of Nagabhushanarao, aged 59 years, Hindu, House hold duties, residing at door no. 39-4-12/2, Sector IV, Murali nagar, Visakhapatnam
2. Ravuru Jagannadha Rao (Since died)
3. Ravuru Srinivasarao, son of Jagannadharrao, aged about 46 years, Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
4. Ravuru Lakshmanarao, son of Jagannadharao, aged about 43 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
5. Ravuru Kamalamma, wife of Jagannadharao, aged about 64 years. Hindu, business, resident of Jettivari street, Palakonda, Srikakualm district.
6. Vemakoti Venkatarao Pantulu (died)
7. Turella China Latchmu, son of late Gangayya, aged about 50 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
8. Pappala Satyamseti, son of Suri Setty, aged about 55 years, Hindu, cultivation, resident of Kurmarajapuram h/o. Tumarada village of Palakonda mandal in Srikakulam district.
9. Dummoda Narayanamma, wife of late Suryanarayana, aged about 50 years. Hindu, House hold duties, resident of Attali village of Palakonda mandal in Srikakulam district.
10. Girizala Babji, son of Appalaswamy, aged about 50 years, Hindu, cultivation, resident of Palakonda nagar panchayat in Srikakulam district.
11. Rayapureddi Rama Ratna, wife of Mohanarao, aged about 53 years, Hindu, House hold duties, Sankili village of Regidiamdalavalasa mandal.
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12. Karasodi Lakshmikantam, wife of Venkataramarao, aged about 45, Hindu, residing at door no. 137/B of Railway quarters, Dondaparthi village of Visakhapatnam district.
13. Battula Savitri, wife of Ramakrishnarao, aged about 42 years, Hindu, residing at door no. B2/5 of LIC quarters in Peddawaltair, Visakhapatnam,
14. Pragada Rangamani, wife of late Venkatarao, aged about 40 years, Hind residing at door no. 37/B of Traffic colony at Kurda road, Puri district Odisha.
15. Vemakoti Viswanadham, son of late Venkatarao Pantulu @ Kondaya pantulu, aged about 35 years, Hindu, resident of Palakonda mandal in Srikakulam district.
16. Vemakoti Ramanamurty, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 30 years. Hindu, resident of Palakonda mandal in Srikakulam district.
17. Vemakoti Satynarayana, son of late Venkatarao Pantulu @ Kondayya pantulu, aged about 25 years, Hindu, resident of Palakonda mandal in Srikakulam district.
18. Akkireddi Laxmi sri, wife of Vivekananda Swamy, Hindu, aged about 50 years, residing at Ippili street of S.P.Rural office, Pedda waltair. Visakhapatnam.
19. Nalla Sujata, wife of Rama Prasad, Hindu, aged about 50 years, employee, Andhra Bank, Amadalavalasa, Srikakulam district.
20. Balireddi Geethanjali, wife of Venkatarao, aged about 52 years, Hindu, Near Andhra Bhoomi Office, Visakhapatnam. … Respondents
This Appeal is an appeal preferred by the appellant/Petitioner//3rd party objector/claimant prays to set aside the decree and order dt.18-01-2018 made in E.A 39/2011 in E.P.17/2011 in
O.S.32/1984 on the file of Senior Civil Judge’s Court, Rajam and allowing
the appeal with costs. Value of the appeal for the purpose of Court fee and jurisdiction is the appeal preferred against decree and order passed in E.A.39/2011 in
E.P.17/2011 in O.S.32/84 filed under Or.XXI Rule 97 CPC r/w R-99 CPC
denying the appellant continue in possession of petition schedule property as tenant of the petition schedule property in E.A.39/2011 in E.P 17/2011 in O.S.32/1984 which is item No.1 of F schedule of the suit ie., Soda shop and a fixed Court of Rs.300/- is paid as per section 47(iv) as the same is the Court fee for the property value exceeds Rs.10,000/- as the value item No.1 of F schedule of the suit soda shop is Rs.15,000/- and the said Court fee amount of Rs.300/- is paid.
AS.No.19/2018 Date of disposal: 10-07-2023
This appeal came on 28-6-2023 for final hearing before me in the presence of C. Narasimhamurty, Advocate for the appellant and of Sri P. Ramanjaneyulu, Sri Y.Satyasrinivas, Sri Y. Ramesh, Advocates
for the respondent-1; Sri K. Ravi, Advocate for R3 and R5 and upon
hearing their arguments and matter having stood over for consideration till this day, this Court doth Order and Decree as follows:-
i) that the Appeal be and the same is hereby dismissed; and ii) that the Decree and Order passed by the ld. Senior Civil
Judge, Rajam in E.A.39/2011 in E.P.17/2011 in O.S.32/1984
dated18-01-2018 is hereby confirmed; and iii) that each party do bear their own costs.
Given under my hand and seal of the Court, this the 10th day of July, 2023
Special Judge for trial of cases under
SCs & STs (POA) Act-cum-IV Additional
District Judge, Srikakulam.
For Appellant For Respondent:
No costs memo filed on either side.
Special Judge for trial of cases under
SCs & STs (POA) Act-cum-IV
Additional District Judge, Srikakulam
Certified that the Decree is properly drafted.
Chief Administrative Officer.